I frequently represent people who have been charged with committing traffic crimes that involved an accident (for example, DUI manslaughter or leaving the scene of an accident). Often, the client's auto insurance company wants to take a tape-recorded statement regarding the details of the accident while the criminal case is still pending.
Whenever this situation arises, I ask the insurance adjuster to wait until after the client's criminal case is concluded before taking the taped statement because I do not want the State Attorney's Office to subpoena the statement and then use it against my client at trial. The adjusters whom I have dealt with always agree to this request because they are working on behalf of the client as am I.
In a 2007 Florida case called Reynolds v. State of Florida, a person who was being charged with a crime gave a statement to his insurance company while his criminal case was still pending. When the prosecutor learned of this statement, he sent a subpoena to the insurance company demanding a copy of the statement. The insurance company refused to comply with the demand based, in part, on the attorney-client privilege.
A Florida appeals court ultimately agreed with the insurance company stating that because the individual's statement did indeed fall within the attorney-client privilege, the insurance company was not required to provide it to the prosecutor.
Although the Reynolds case protects statements that are made by someone to her own insurance company because of the attorney-client privilege, it would seem to provide no protection at all to statements made by an individual to the other party's insurance company.
That being the case, I think the safest course of action is to have a client wait until after her criminal case is completely finished before giving a statement either to her own insurance company or to the opposing party's insurance company.
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